Notes OAPA 1861 - Summary Criminal Law PDF

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Notes: Offences Against the Person Act1861Assault occasioning actual bodily harmS47 OAPA 1861:“Whoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable to be kept in penal servitude”Actus reusAR: assault or battery which causes actual bodily harm I...

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Notes: Offences Against the Person Act 1861 Assault occasioning actual bodily harm S47 OAPA 1861: “Whoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable to be kept in penal servitude”

Actus reus AR: assault or battery which causes actual bodily harm   

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In this context assault includes battery (Savage [1992]) No difference between occasioning and causing ABH: “any hurt or injury calculated to interfere with the health or comfort of the victim… provided it is more than transient or trifling” (Donovan [1934]) o Low threshold o Momentary unconsciousness will count (T v DPP [2003]) o Cutting someone’s hair (DPP v Smith [2006]) Must show causation from assault to actual bodily harm (Ireland [1997]) Psychological injury can count as ABH (Burstow [1998])- but most be attested to by experts, mere fright will not count o Morris [1998] sleeplessness due to harassment is not sufficient, requires a proper condition

Mens rea MR: intention to inflict or recklessness as to causing the apprehension of immediate unlawful force (Savage [1992]) 

Crime of constructive liability (Savage [1992]). MR same as assault and battery o Is it fair to convict someone for something they did not foresee

Case Savage and Parmenter [1992]  Savage: D threw beer over V but let go of the glass which cut V’s wrists  Parmenter: D caused his baby son to suffer damages to the bones in his leg and forearm  Held: for s20 must be proved D actually foresaw that his act would cause harm, but does not need to have foreseen that his actions would cause physical harm of the gravity for s20. S47: need to show an assault and that actual bodily harm was occasioned by it  Lord Ackner “not obliged to prove that the defendant intended to cause some actual bodily harm, or was reckless as to whether such harm would be caused”

Malicious wounding or inflicting grievous bodily harm S20 OAPA 1861 “Whoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour…”

Actus reus AR: Wounding or inflicting grievous bodily harm Wounding  Requires all layers of the skin to be broken (Moriarty [1834])  Internal ruptures are not wounds (JCC (a minor) [1984]) Grievous bodily harm  GBH: “serious bodily harm” (Metheram  [1961]); “really serious harm” (Smith [1961]) o Take account of totality of injuries (Grundy [1977]) o Can take account of characteristics of V when judging seriousness of harm- less in the way of harm will constitute serious harm for a child (Bollom [2004])  Psychological injury attested to by expert evidence can count as bodily harm (Burstow [1998]) o Burstow has extended the range of harm that could kind as bodily harm o What about termination of job or relationship where D is aware of V’s fragile mental state? o Simester: psychological injury better dealt with by new legislation  Inflict=cause (Burstow [1998]) o S20 does not require assault or battery (Wilson [1984])- could be either directly or indirectly caused  Infection by HIV can count as GBH (Dica [2004]) o Ormerod: offence intentional infection and recklessness to infection when no informed consent Cases Dica [2004]  D knew he was HIV+ and recklessly transmitted the disease to 2 women, when they did not know or consent to the risk of infection  Held: D who knowingly and recklessly transmits an STD to another could be guilty of s20 offence; consent to sex not regarded as consent to the risk of disease; V had consented to the risk that may have provided to a defence under s20  Risks are inherent in sex, criminalising the taking of such risks is impractical and would interfere with autonomy; could have negative impacts on public health (i.e. HIV sufferers not getting tested)  Per Judge LJ if psychological injury can be inflicted indirectly then so can physical injury; “serious violence was not lawful simply because it enabled the perpetrator or the victim to achieve sexual gratification”

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Per Judge LJ “consensual acts of sexual intercourse [are not] unlawful merely because there was a known risk to the health of one or other participant”, “modern society has not sought to criminalise those who have willingly accepted risks”

Konzani [2005]  D, who knew he was HIV+, infected 3 women with HIV; D claimed the women had consented to the risk of transmission as one of the risks of having unprotected sex  Held: D was not to be convicted if there was, or might have been, an informed consent to the risk of infection; where D deliberately withholds his HIV status from V this is incompatible with honesty or with a genuine belief  Per Judge LJ “her consent must be an informed consent”  Per Judge LJ may be cases where D could rightly claim he honestly believed in V’s informed consent despite not specifically telling her Ireland and Burstow [1998]  Ireland: D admitted making phone calls to 3 women, who suffered psychological trauma as a result. Burstow: campaign of stalking against women included silent phone calls, photographs and menacing notes  Held: psychological injury fell within bodily harm; ‘inflict’ does not require direct application of harm to V; assault may be committed by words or gestures or even a silent phone call  Per Lord Steyn “must be interpreted to include recognisable psychological illness”  Per Lord Hope: no difference between cause and inflict; “it is not true to say that mere words can never amount to an assault. It depends on the circumstances”

Mens rea MR: maliciously = intention to cause or subjective recklessness as to causing some bodily harm 

Enough that D foresees he might inflict some, even minor bodily harm on V (Savage and Parmenter [1992])

Wounding with intent S18 OAPA 1861  

Aggravated form of s20 OAPA 1861 Maximum sentence life

Modes of commission 1. Unlawfully and maliciously wounding, with intent to do GBH 2. Unlawfully and maliciously wounding, with intent to resist or prevent the unlawful apprehension or detainer of any person 3. Unlawfully and maliciously causing GBH, with intent to do GBH 4. Unlawfully and maliciously causing GBH, with intent to resist or prevent the unlawful apprehension or detainer of any person

Actus reus AR: Wounding or causing GBH

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Same AR as s20 save for ‘cause’ instead of ‘inflict’ Less concern about extension of liability to psychological injury and serious infection because of the strong mens rea requirements Transmission of STD amounts to serious bodily harm ( Dica [2004])- when D inflicts V with HIV having foreseen the risk and where V has not consented to that risk (Konzani [2005])

Mens rea MR: intent to do GBH   

Wounding with intent to do GBH must be direct intent- cannot be ‘virtual certainty’ if it did not happen For lawful arrest: inclusion of ‘malicious’ requirement suggests D must at least foresee the possibility she might cause a wound or GBH MR for lawfulness of arrest: in the circumstances that D believes exists the arrest is lawful

Maliciously administering a noxious thing S23 OAPA 1861 AR: administer to or cause to be administered or taken by any other person a poison or other destructive or noxious thing; thereby endangering life or inflicting grievous bodily harm MR: ‘maliciously’ = subjective recklessness Administering  Cato [1976] D injected V with syringe of heroine  Cunningham [1957] a gas meter was ripped off a wall by D releasing coal gas which injured V  Wording of statute would cover indirect administration- where V injects herself but is not aware of the nature of substance (subject to Kennedy [2007] novus actus) Poison  Lord Coleridge CJ in Cramp [1880] “something injurious to health or life”  Some things are in their nature poisions ( Cramp [1880]) i.e. arsenic  Courts will look at nature of the substance and the amount supplied (Marcus [1981])  A substance is noxious if it is hurtful, unwholesome or objectionable (Marcus [1981])

S24 OAPA 1861   

Lower penalty of only 5 years compared to 10 years for s23 AR: same as s23 but does not require consequence elements of endangering life or causing GBH MR: intent to injure, aggrieve or annoy. Intent to injure- involves intent to cause harm either by way of the substance or by enabling the accused to harm V in some other way (Hill [1986])

Reform of OAPA Problems with current law Incoherence  Gardner (1994) moral clarity is needed- OAPA divided up in terms of “how the harm is brought about” not the level of harm  Unnecessary particularity i.e. ‘wound’ which would not occur in a modern statute o Gardner (1994): argues particularity is good in terms of labelling and distinguishing wrongdoing  No clear hierarchy of offences- even without bringing in offences other than ss18,20 and 47; does not conform to a proper ladder principle o Not in terms of sentencing, mens rea, or harm caused o Which offence is often based on CPS guidance rather than statute itself o Maximum sentences- s20 5 years versus s47 5 years; s18 life o But: Gardner (1994) “incomparably different types of offences with different themes”- s47 different because it belongs to a completely different class of offences (requires assault but lesser harm) Constructive crimes  Correspondence principle- 1861 Act does not accord with the idea that AR should match MR o Lack of foresight of harm in s47 or of foresight of serious harm in s20 Carry hefty penalties Prosecution would still be able to convict D of an offence if he did not have the corresponding mens rea, just a lesser one Correspondence principle not universally accepted o Changing your ‘normative position’ by foreseeing some harm or being reckless as to assault/battery (for s47) o Responsible for injury that flows from actions- Horder “creating your own bad luck” o o

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Obscure and archaic language  Rule of law argument. Archaic language- not commonly used words/ could be simpler and clearer i.e. ‘maliciously’ , ‘detainer’ o But: GBH and ABH have entered into common parlance o Gardner (1994) “words carry their moral force with them”  Offences need to be properly understandable by: average person, prosecutors, and lay magistrates  Inflict/cause- in s20 terms they are held to be synonyms- odd or just judicial creativity to respond to modern age Obsolete offences  Large number of highly particularised and specific offences that are no longer used, including: assaulting a magistrate on his way to guard a wreck, and specific offence for administering chloroform

Efficiency problems  Due to complexity cases often get tried in the wrong court leading to delays and increased costs o 10% of s47 offences tried in Crown Court when they receive a sentence that could have been applied in the Magistrates’ Court ‘Wound’  Should a wound be equivalent to GBH- could be a very small wound which with modern medicine is unlikely to lead to serious injury/harm o Deters use of knives/weapons? o Something intrinsically abhorrent about breaking the skin Psychological harm  Extension of bodily harm to cover psychological harm in Ireland and Burstow o Horder (1994): value diminished when psychological health is affected is different to that of physical health- “offends moral nominalism” o What about boss who sacks worker knowing she has mental health problems? Could they be guilty of s47 or s20 offence- “criminalise immorality” (Horder 1994)

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Fair labelling- grievous and actual bodily harm are broad categories that do not take account of the nature of the wrong

Home Office Reform Proposal (1998) 

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Create offence of: o Intentionally causing serious injury to another (life) o Reckless causing of serious injury (7 years) o Intentional or reckless causing of injury (5 years) o Assault and battery (6 months) Clear links between MR and ARs- correspondence principle; clarity and understandable o Why is intentional and reckless causing of injury one offence?  For serious injury gives opportunity of maximum life sentence for intentional causing of serious injury Generality: o Horder (1994): reform would strip the law of too much of its moral substancefavours more descriptive labels o Reform would “strip the law of too much moral substance” (Horder 1994) “slide from the vice of particularism into the opposed vice of moral vacuity” o Horder (1994) suggests redrafting the offence to include more specific labels i.e. castrates, disfigures. Would clearly define ‘injury’ as physical or mental injury Exclusion of disease from serious injury (proposals pre-Dica) - could be a licensed for risk taking, but policing sex would be difficult and public health concerns o Since Dica only 27 disease transmission cases, of which 25 were for HIV, Golding [2014] for herpes

Should it be enough to be reckless about transmission and having the disease? Not clear under current law Proposal to combine assault and battery into one offence- no offence if force or impact is neither intended or likely or is an acceptable part of everyday life o In practice Police charge ‘assault and battery’ on indictments o Administrative problem of having to amend numerous statutory provisions Law Com Scoping Paper (2014)- out to consultation o Offence of ‘minor injury’ between assault/battery and causing injury in order to stop inappropriate cases going to Crown Court  Confuses structure  ‘Minor’ would not be appropriate term o Should the Act defines the mens rea i.e. intention or recklessness?  Confusion with other areas of law, which would not have statutory mens rea  Would courts adopt definitions more broadly across law o Should we have an offence of reckless endangerment?  No harm would be caused  Already have inchoate offences and specific offences to deal with health and safety, driving, and workplace- better to have particular conduct based offences CPS guidelines would still be necessary in some form: but would have clearer statutory framework o

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Consent and OAPA Current law 1. Where D intends actual bodily harm or worse to V consent provides no defence (Brown [1994]) 2. Where D is reckless as to whether actual bodily harm is caused- Dica and dicta in Brown suggest consent does function 3. Where D intends only battery with V’s consent and actually causes ABH- there is no unlawful battery as the foundation for s47 (Meachen [2006]) o Slingsby [1995] Judge J contrary to principle to treat as criminal activity that would not otherwise be an assault but for the injury caused 4. D intends or is reckless to ABH with V’s consent but causes only battery- consent functions o Barnes [2005] per Lord Woolf CJ “when no bodily harm is caused, the consent of the victim is always a defence to the charge” Exceptions “Does public policy or the public interest demand that the appellant’s activity should be vested with criminal sanctions?” (Wilson [1997])- seems to be in conflict with Brown 1. “Dangerous exhibitions” are lawful (A-G’s (Ref No 6 of 1980))- stunt shows and circus acts 2. “Properly organised sports” (Brown [1994])

Barnes [2005] Lord Woolf CJ importance of open public performance, rules and disciplinary structures. When injury is non-intentional and a foreseeable consequence of playing game V is taken to impliedly consent o Intentional causing of serious injury still unlawful even if inside rules of game (Bradshaw [1878])- Simester: should be required to be direct intent when within rules of game Rough and undisciplined horseplay with no intent to cause injury (Aitken [1992]) o Genuine belief in consent of V negatives recklessness even if unreasonable (Jones [1987]) Surgery including therapeutic and cosmetic surgery (Corbett [1971]) Body piercing and tattooing (Wilson [1997]) Religious flagellation (Lord Mustill in Brown) Infectious sex where consent is to risk of infection ( Dica and Konzani) o V must be fully informed about risk (Konzani [2005]) Any cases where the pain is not intended? (one reading of Dica decision) o

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Case law Brown [1994]  Ds were homosexual males who engaged in consensual sadomasochistic practices and were charged under s20 and s47  Held: not in the public interest that people should wound or cause actual bodily harm for no good reason, in the absence of such a good reason consent was no defence  Lord Templeman: “consideration of policy and public interest”; “sadomasochism is not only concerned with sex. Sadomasochism is also concerned with violence”; “consents were dubious and worthless”; “obvious dangers of some serious injury and blood infections” o “Sex is no excuse for violence… pleasure derived from pain is an evil thing”  Lord Jauncey: “considerable practical problems would arise” if line was drawn between s47 and s20; “curious activities… good luck rather than good judgment which prevented serious injury from occurring”- others are not so careful/lucky; could easily exceed level of injury consented to  Lord Lowry: “much easier to draw the line between no significant injury and some injury than to differentiate between degrees of injury”; “a perverted and depraved sexual desire… [not] conducive to the welfare of society”; no restriction would give “judicial imprimatur”  Lord Mustill (dissents): “should be a case about private sexual relations if anything at all”; compare decision with boxing; “the state should interfere with the rights of an individual to live his or her life as he or she may choose no more than is necessary…”  Lord Slynn (dissents): draws line at s47 and s20 “other than for cases of grievous bodily harm or death, consent can be a defence” Wilson [1996]  At V’s instructions, D her husband branded his initials onto her buttocks, causing her to seek medical assistance  Held: analogous to tattooing

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Per Russell LJ “appellant’s desire was to assist her in what she regarded as the acquisition of a desirable piece of bodily adornment”; “consensual activity between husband and wife… is not normally a proper matter for criminal investigation…”

Barnes [2005]  D caused V a serious leg injury in a football game, charged under s20- tackle was late, crushing and high  Held: proceedings only brought if conduct considerably grave; consent only relevant if injury did not go beyond what could reasonably be regarded as expected when playing the sport; conduct outside rules could still not meet threshold  Per Lord Woolf CJ exemptions are based on public policy A-G’S Ref (No 6 of 1980)  Whether a fight between two people in a public place could escape liability due to consent  Per Lord Lance CJ “it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason… it is an assault if actual bodily harm is intended and/or caused” Aitken [1992]  Ds and V were RAF officers, who had been drinking and engaged in horseplay. Ds set fire to while he was wearing a fire resistant suit, V suffered serious burns  Held: possible that continued presence of V was implied consent to risks of horseplay- Ds could have honest belief of V consent whether reasonable or not Slingsby [1995]  D penetrated V’s rectum with V’s consent. Ds signet ring caused cuts, V did not realise and died of septicaemia  Held: D had no intention or foresight of the harm to V and V consented as such no battery occurred to found a charge under s47 Tabassum [2000]  D deceived women into undergoing breast screening on the basis that he was medically qualified when he in fact was not, no sexual motive  Held: Vs “were consenting to touching for medical purposes and not indecent behaviour, that is there was consent as to the nature of the act but not its quality” Richardson [1998]  D was a dentist who performed bona fide treatments while unqualified  Held: fraud vitiated consent only when it lead to a mistaken belief as to the identity of D or the nature and quality of the act; mistak...